Agendas, reports and minutes

Highland Licensing Board

Date: Tuesday, 11 August 2015

Minutes: Read the Minutes

Minute of the meeting of the Highland Licensing Board held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness, on Tuesday 11 August 2015 at 1.30pm.

Present:

Dr I Cockburn, Mr R Greene, Mr A Henderson, Mrs L Macdonald, Mr W Mackay and Ms M Smith.

In Attendance:

Mr A Mackenzie, Clerk
Ms S Blease, Depute Clerk
Mr I Cox, Licensing Standards Officer
Mr D Inglis, Licensing Standards Officer
Mrs L Treasurer, Licensing Standards Officer
Ms A Macrae, Committee Administrator

Also in Attendance:

Sergeant B Gray, Police Scotland

Item 7.2: Ms J Nicolson, Solicitor for the Applicant
Item 8.2: Mr N Hassard, Solicitor for the Applicant and Ms K Cleaver, Applicant
Item 9.1: Ms K Keith, Applicant
Items 9.4 to 9.9: Mrs L Murray, Solicitor for the Applicant
Item 9.11: Mr D O’Connor, Applicant
Item 9.12: Mrs L Murray, Solicitor for the Applicant
Item 9.13: Mr Morton, Applicant

Briefing on Protocol for Webcasting of Meetings

The Clerk advised the Board that the meeting would be filmed and broadcast over the internet on the Highland Council website and would be archived and available for viewing for 12 months.

1. Apologies for Absence
Leisgeulan

Apologies for absence were intimated on behalf of Mr A Duffy and Mr C Fraser.

2. Declarations of Interest
Foillseachaidhean Com-pàirt

There were no declarations of interest.

3. Confirmation of Minutes
Dearbhadh a’ Ghearr-chunntais

There had been circulated for confirmation:

i. minute of meeting of the Board held on 16 June 2015; and

ii. minute of special meeting of the Board held on 21 July 2015.

The Minutes were held as read and APPROVED.

4. Licensing (Scotland) Act 2005
Licences granted under delegated powers
Achd Ceadachd (Alba) 2005
Ceadachdan a bhuilicheadh fo ùghdarras air a thiomnadh

There had been circulated Report No HLB/076/15 detailing licences which had been granted under delegated powers by the Clerk to the Board during the period 3 June 2015 to 28 July 2015 and inviting the Board to note the Report.

The Board NOTED the report.

5. Licensing (Scotland) Act 2005
Occasional licences and extended hours
granted under delegated powers
Achd Ceadachd (Alba) 2005
Ceadachdan Corra-uair agus Uairean Sìnte a bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLB/077/15 detailing the occasional licences and extended hours applications which had been granted under delegated powers by the Clerk to the Board during the period 3 June 2015 to 28 July 2015 and inviting the Board to note the Report.

The Board NOTED the report.

6. Call for evidence by the Local Government and Regeneration Committee on devolution of legislative powers relating to Fixed-Odds Betting Terminals
Gairm airson fianais le Comataidh an Riaghaltais Ionadail agus an Ath-bheothachaidh mu thiomnadh chumhachdan reachdail a’ buntainn ri Ionadan Cur Geall le ‘Fixed-Odds’

There had been circulated Report No HLB/078/15 inviting the Board to consider a draft response to the call for evidence by the Local Government and Regeneration Committee of the Scottish Parliament on the UK and Scottish Governments’ proposals in relation to Clause 45 of the Scotland Bill which dealt with the devolution of powers to control the number of Fixed-Odds Betting Terminals in gambling premises.

In discussion, Members welcomed the terms of the draft response as set out in the report.

The Board AGREED:-

i. the draft response, attached as Appendix 4 to the report, to the call for evidence on the UK and Scottish Government’s proposals in relation to Clause 45 of the Scotland Bill on the devolution of powers in respect of the numbers of Fixed-Odds Betting Terminals in gambling premises; and

ii. to authorise the Clerk to submit this to the Local Government and Regeneration Committee of the Scottish Parliament as the submission of the Highland Licensing Board.

7. Licensing (Scotland) Act 2005
Applications for new premises licences
Achd na Ceadachd (Alba) 2005
Larrtas airson cheadachdan thogalaichean ura

7.1 Ref: HC/INBS/581
Applicant: Gillian Marion Daley, Clunebeg Lodge, Clunebeg Estate, Drumnadrochit
Premises: Clunebeg Lodge, Lewiston, Drumnadrochit, IV63 3US
Type: On and Off Sales

There had been circulated Report No HLB/079/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions and the local conditions detailed in the Report.

7.2 Ref: HC/INBS/582
Applicant: Cruise Loch Ness Limited, Clava House, Cradlehall Business Park Inverness IV2 5GH
Premises: Cruise Ship: The Legend of Loch Ness, Canal Side, Fort Augustus PH32 4BD
Type: On and Off Sales

There had been circulated Report No HLB/080/15 by the Clerk inviting the Board to determine the application.

On hearing from Ms J Nicolson for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions.

8. Licensing (Scotland) Act 2005
Applications for provisional premises licences
Achd Ceadachd (Alba) 2005
Iarrtas airson ceadachdan thogalaichean le cumha

8.1 Ref: HC/RSL/1744
Applicant: Garton Jones Real Estate Limited, 264 High Street, Beckenham, BR3 1DZ
Premises: The Cowshed, Cuil, Uig, Isle of Skye, IV51 9YD
Type: On Sales

There had been circulated Report No HLB/081/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions.

8.2 Ref: HC/RSL/1746
Applicant: Aldi Stores Limited per Lindsays, 1 Royal Bank Place, Buchanan Street, Glasgow, G1 3AA
Premises: Aldi, Unit A, Fort William Retail Park, North Road, Fort William
Type: Off-Sale

There had been circulated Report No HLB/082/15 by the Clerk inviting the Board to determine the application.

Mr N Hassard for the Applicant, spoke in support of the application as follows:-

that a modest alcohol display capacity of 30.375m² was being sought which was below the threshold of 40m² set out in the Board’s overprovision statement and lower than many other supermarket chains; this included an area of 24.75m² as a permanent alcohol display (shown in block red on the plan attached to the report) and 5.625m² as additional seasonal display (shown in hatched red on the plan attached to the report);
that his clients proposed to use the additional seasonal display area annually, between the period 24 November and 9 January;
that the request for the additional seasonal display was directly connected to the limited range of alcohol products stocked by Aldi and on the basis that the permanent alcohol display area did not lend itself to stocking seasonal alcohol products for which there was demand over the period November to January;
that some other Licensing Boards in Scotland had granted the seasonal element of the application for stores outwith the Highlands, details of which were provided to Members, although he acknowledged this did not set a precedent in regard to the Board’s determination of the application;
that the application complied with mandatory condition 13(1)(a) contained in Schedule 3 of the Licensing (Scotland) Act 2005 which required that alcohol for off-sales may be displayed only in a single area of the premises agreed by the Licensing Board and licence holder; this was on the basis of the proposed layout of alcohol display areas were located on either side of the same aisle, facing each other, so amounted to a single area;
his clients would be stocking toilet rolls in the seasonal display area outwith the period November to January rather than any of the products permitted in an alcohol display area in terms of the Act, such as soft drinks; this was why the additional area was being requested only as a seasonal variation;
if the Board was not supportive of the argument that the seasonal display area was part of a single alcohol display area then his clients would be content to amend the application to remove the “additional seasonal display” of 5.625m²; and
it was suggested that the mandatory condition referred to above was designed to prevent retailers stocking alcohol products at different locations around premises to encourage impulse buying, and therefore the location of the permanent and seasonal area in one area both complied with the law and the spirit of the law.

The Clerk advised that the Licensing (Scotland) Act 2005 was clear in that it referred to a ‘single area’ and that he did not accept the argument that this area could change in size over the festive season or at any other time of the year. He stated that if Scottish Government had not intended that the display area be a “single area” then it had had several opportunities through amendments to the Act to clarify this point. He also advised that the Board was not obliged to take into account the decisions of other Licensing Boards, provided it acted within the terms of the legislation.

In discussion, Members raised the following issues:-

Clarification was sought as to whether it would have been be acceptable in the terms of the Act if the applicant had applied for both areas to be a permanent alcohol display area of 30.375m². In response, the Clerk advised that this would be acceptable on the basis that it would be a single area agreed without qualification to the size of that area at different times of the year.
Clarification was also sought as to why, outwith the period November to January, the applicants did not wish to display in the 5.625m2 area other products which could be displayed in a single alcohol area in terms of the Act. Mr Hassard advised that the floor plans and merchandising strategy within all Aldi stores were approved centrally outwith Scotland and there was limited local flexibility in this regard.
That members would be minded to grant the application only if it were amended to remove the “additional seasonal display” and that the Applicant’s head office should be advised of the separate licensing laws which applied in Scotland. Mr Hassard confirmed that the applicants would amend the application to remove the “additional seasonal display” of 5.625m2 shown hatched in red on the plan.

Thereafter, the Board AGREED to grant the application as amended at the meeting to remove the “additional seasonal display” of 5.625m² shown hatched in red on the plan and subject to the mandatory conditions.

8.3 Ref: HC/RSL/1743
Applicant: Karen Fay Houghton
Premises: Caol Community Centre (New), Caol, Fort William
Type: On and Off Sale

There had been circulated Report No HLB/083/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions and the local conditions detailed in the Report.

9. Licensing (Scotland) Act 2005
Applications for variation (major) to premises licences
Achd Ceadachd (Alba) 2005
Iarrtasan airson caochladh (Mòr) a thaobh ceadachdan thogalaichean

9.1 Ref: HC/CSER/0857
Applicant: Diageo Scotland Ltd, 5 Lochside Way, Edinburgh Park, Edinburgh
Premises: Clynelish Distillery, Brora, KW9 6LR
Type: On and Off Sales

There had been circulated Report No HLB/084/15 by the Clerk inviting the Board to determine the application.

On hearing from Ms K Keith, Applicant, the Board AGREED to grant the application subject to the mandatory conditions and removing the existing special condition.

9.2 Ref: HC/INBS/329
Applicant: The Partnership of Dows, Deshar Road, Boat of Garten PH24 3BN
Premises: Dows Stores, Deshar Road, Boat of Garten PH24 3BN
Type: Off Sales

There had been circulated Report No HLB/085/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions.

9.3 Ref: HC/INBS/39
Applicant: J and P R Haywood, Fairwinds Hotel, Carrbridge PH23 3AA
Premises: Fairwinds Hotel and Chalets, Carrbridge PH23 3AA
Type: On Sales

There had been circulated Report No HLB/086/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions.

9.4 Ref: HC/CSER/0797
Applicant: Lidl UK GmbH, 19 Worple Road, London, SW19 4JS
Premises: Lidl UK GmbH, Dalmore Road, Alness
Type: Off-Sales

There had been circulated Report No HLB/087/15 by the Clerk which invited the Board to determine the application. In response to the application a timeous notice of objection had been received from the Consultant in Public Health, NHS Highland and a timeous letter of observation received from Police Scotland, copies of which were appended to the report.

The Clerk suggested that items 9.4 to 9.8 below be considered together to avoid duplication and on the basis that that the Applicant and the rationale for each of the applications were the same. He clarified that there would also be an opportunity to raise any matters in regard to the individual applications if required.

Mrs L Murray spoke on behalf of the Applicant in support of the applications as follows:-

that the rationale for the applications to increase the alcohol display capacity at each of the stores was that her clients wished to create separate display areas at the end of aisles, to allow them to showcase the products of a country during international themed weeks which were run at Lidl’s stores throughout the course of the year;
that the applications were part of a national policy and were not designed to test the Highland Licensing Board’s overprovision policy or to target stores in the Highlands only;
it was important to note that the alcohol products to be used in the new display area would be from existing product lines; it was not designed to bring in new products for the sake of a promotion at short term discounted rates to encourage customers to purchase more alcohol;
in regard to the objection to the applications received from NHS Highland there was no attempt to link the statistics on alcohol related health harm to her client or the operation of the individual stores which were the subject of the applications and instead the objection relied on wider statistical information in regard to alcohol health harm and social trends;
in regard to the objection received from the Licensing Standards Officer, reference was made to the findings of a short report published in the journal ‘Social Science and Medicine’ on the impact of displaying alcohol at end of aisle locations; however she suggested the Board should have no regard to this report on the basis that the full text of the report was not produced and there was no information on the methodology used or the detail of the research undertaken in reaching the report’s findings;
that Lidl was a responsible retailer and had undertaken a number of health related initiatives and public safety measures, details of which were provided to the Board;
that the current and applied for capacities at each of the stores was less than the capacities which had been previously granted by the Board for each of the premises;
that her clients chose to stock only alcohol products in their agreed alcohol display areas and did not artificially inflate the size of those areas by filling them with other approved products such as soft drinks;
her clients had previously sought minor variations to reduce off-sales capacities to reflect any changes to their display areas when they were not being used for the display of alcohol; however this honest approach then opened her clients up to challenge in terms of the overprovision policy when they later sought to increase their display areas again;
recent applications for a similar sized increase in the alcohol display area had been granted by other Licensing Boards in Scotland contrary to their overprovision policy on the grounds of Lidl’s honest, open and straight forward approach to keeping alcohol display areas for alcohol products only;
in relative terms her clients gave a modest area over to alcohol display, their national average of 4-5% being considerably less than other supermarket chains; and
that this was a matter of local Board policy rather than law and that the applications should be granted having heard the unique way in which Lidl operated, its demonstrated willingness to decrease alcohol display areas when they were not being used, their openness in stocking alcohol only in those areas, and the fact that each of the premises had previously benefited from considerably larger alcohol display areas.

Sergeant B Gray spoke in regard to the observation submitted by Police Scotland on the basis that the applications to vary the premises licences to increase off-sales capacity above 40m² were outwith the Board’s policy in relation to overprovision.

During discussion Members raised a number of points as follows:-

an explanation was sought as to why Lidl’s had not applied for the maximum capacity of 40m² referred to in the Board’s overprovision policy and to include the end of aisle displays within that capacity; Mrs L Murray advised that this was a national policy across all Lidl’s stores in regard to end of aisle displays and was designed to allow them to properly showcase products;
reference was made to that part of Lidl’s statement attached to the Clerk’s report which referred to protecting and improving public health and concern that at the Fort William store, customers had to pass the main alcohol display to get to the main checkout points;
concern that stocking alcohol products at the end of aisles would encourage impulse buying as referred to in the report published in the journal ‘’Social Science and Medicine’; Mrs L Murray advised that to her knowledge the Board did not have an issue with end of aisle displays and that in the absence of the full text of the report it was not possible to know what research and methodology had been used in reaching the these conclusions and if they applied to the Highland area; and
it was suggested that Lidl’s proposals would encourage people to impulse buy when waiting at checkouts and therefore to purchase more alcohol.

Thereafter, Ms L Smart, Consultant in Public Health, NHS Highland spoke in relation to her objection during which she advised that:-

the Board’s overprovision policy had been agreed in August 2013 and had taken into account evidence from the public health services and other public sector organisations; a population based approach had been taken which had focused on the Highlands as a whole rather than on particular client groups;
a maximum alcohol display capacity of 40m² had been set within the Policy on the basis that the statistics had showed that there had been a change in social habits and that alcohol sales through off sales was now greater than on sales, for example the evidence showed that in 2011 two thirds of total alcohol sales were through off sales;
the Scottish Health Survey from 2013 showed that in terms of hazardous and harmful weekly drinking by age and gender, all ages had problems with drinking, for example 29% of men aged 55-64 and 24% of men aged 25-34 had problems with drinking;
in addition 40% of the population in Highland were regularly exceeding the daily or weekly limits, and of that 17% of individuals were drinking double or more than twice the daily recommended limit;
the geographical mapping which had been undertaken showed that 90% of the population lived within a ten minute drive of a licensed premises and 54% within a similar walk time, which demonstrated that alcohol was readily accessible in Highland;
the public surveys which had been undertaken showed that the public felt were enough premises selling alcohol available in the area in which they lived and that the public were equally concerned about the harm alcohol could cause;
from the information provided it was clear that Lidl was a responsible retailer, and as such that they should be asked to re-think their policy in regard to the applications particularly as it would result in the 40m² capacity set out in the Board’s policy being exceeded; and
licensing had a vital role in regard to the Highland population’s problematic relationship with alcohol in terms of controlling alcohol availability and helping to keep people safe.

During debate, Members raised the following points:-

concern that approval of the applications would breach the Board’s recently adopted Overprovision Policy which had been agreed following a lengthy process of evidence gathering and consultation and the fact that it may create a precedent for further similar applications outwith policy to come forward;
that it was important to take into account the evidence in regard to the problematic relationship the population had with alcohol and also its impact in terms of cost and harm to people’s health; and
that it had not been sufficiently demonstrated in this case that that there was sufficient reason to justify granting the applications outwith policy and in this regard, members shared the Licensing Standards Officers views and remained to be convinced that the applications to increase capacity beyond 40m2 was supported by robust and reliable evidence.

Mrs L Murray advised that having heard the Board’s views she was content to amend all the applications to remove that element relating to the increased alcohol display capacity.